A recent decision out of the United States District Court for the Southern District of Florida takes a look at defamation per se in the era of Facebook and social media. The entire case revolves around a single Facebook post by an individual named Eugene Weiner:
“Yurim and Isaac took advantage of a old 94plus sick man elder abuse [sic]”
Apparently, Isaac Aflalo saw the post, took exception to it, and filed suit, styling his claim as one for defamation per se. Florida defines defamation – slander when spoken, libel when written – as (1) a false statement of fact, (2) published about the plaintiff, (3) to a third party, (4) the falsity of which is meant to hurt the plaintiff’s reputation or economic well-being. Under Florida law, therea re two ways to prove libel: per quod and per se. Defamation per quod is not apparent on its face and requires extrinsic evidence to prove its injurious nature. In other words, you have to prove your damages. But defamation per se, on the other hand, requires no proof of damages because the published content is “so obviously defamatory and damaging to one’s reputation that they give rise to an absolute presumption both of malice and damage.”
According to the United States District Court, Southern District of Florida, a written publication rises to defamation or libel per se “if, when considered alone and without innuendo, it (1) charges that a person has committed an infamous crime; (2) tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (3) tends to injure one in his trade or profession.” Paulson v. Cosmetic Dermatology, Inc., Case No. 17-20094-CIV-Scola, 2017 U.S. Dist. LEXIS 88031 (S.D. Fla. June 8, 2017). Consideration is to be given only to the “four corners” of the publication, meaning the statement and the statement alone is to be considered – no context is allowed. Furthermore, the statement is to be understood “as the common mind would normally understand it.”
Apparently, the Plaintiff argued that the statement constituted defamation per se because (1) it charged him with the commission of an infamous crime, and (2) subjected him to hatred, distrust, ridicule, or contempt. In response, Mr. Weiner filed a motion to dismiss for failure to state a claim.
Per Se Defamatory Statements
First, the Plaintiff argued that the Facebook post imputed him with “having committed an act which constitutes the infamous crime of elder abuse under Chapter 825 of the Florida Statutes.” Under Florida law, a publication is libelous per se when it imputes to another a criminal offense amounting to a felony. Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240 (S.D. Fla. 2014). Exploitation, abuse, and neglect are categorized as felonies under Chapter 825. See, Sections 825.103, 825.102(1), and 825.102(3)(a)(2).
The court explained that the “common mind” must read the “four corners” of the Facebook post “and understand it to mean that not only was Defendant accusing Plaintiff of some form of physical or psychological injury or neglect of an elderly person, but that he was specifically referring to these Florida laws.” Mr. Weiner claimed that he did no such thing, and the court agreed. Citing the Klayman case provided above, the court held that nothing in Mr. Weiner’s Facebook post “supports the conclusion that use of the phrase “elder abuse” amounts to an accusation of a felony.” One down, one to go.
Plaintiff’s second argument: Even if the Statement did not charge him with an infamous crime, it nonetheless subjected him to “hatred, distrust, ridicule, contempt or disgrace.” Again, the court disagreed, holding that the “grammatically flawed and incoherent post” did not engender the type of hatred, distrust, ridicule, contempt or disgrace that is required under the law. I’m not sure I agree with the Court’s analysis. I’ll address that below.
Publication Requirement
Next, the Court went the extra mile to address the “publication prong.” To prevail on a defamation per se case, a plaintiff must allege the “identity of the particular person to whom the remarks were made with a reasonable degree of certainty” to afford the defendant “enough information to determine affirmative defenses.” Ward v. Triple Canopy, Inc., 2017 U.S. Dist. LEXIS 115472, at *4 (M.D. Fla. July 25, 2017). Mr. Aflalo relied on Internet Solutions Corp. v. Marshall, 39 So.3d 1201 (Fla. 2010) to argue that a posting on the internet that is accessed by third parties is considered “published” for purposes of a defamation claim. Mr. Aflalo’s amended complaint specifically argued that the offending language was posted on Mr. Weiner’s Facebook wall on his Facebook page “for all to see including persons living in Florida.” The Court disagreed citing Ward.
In Ward, the plaintiff alleged that the purported defamatory statements were published to: “(1) the Department of State, (2) the Department of Energy, (3) a number of law enforcement agencies … and (4) other entities and/or prospective employers.” While that court found that “the Department of State” and “the Department of Energy” were sufficiently identified, the court then found that the reference to “a number of law enforcement agencies” and “other entities and/or prospective employers” did not sufficiently identify to whom the purported statements were made with a reasonable degree of certainty. Turning back to Mr. Aflalo’s claim, his contention that the allegedly defamatory remark was posted on Facebook “for all to see” failed to identify those persons to whom the Facebook post was published with a reasonable degree of certainty. The Court dismissed the complaint without prejudice, giving the Plaintiff leave to amend.
I completely disagree with the Court’s analysis of the publication prong. The required element is “publication”. Posting something on Facebook most assuredly constitutes publication and is entirely different from the situation in Ward supra, where the defendant allegedly mailed defamatory statements to various governmental entities. Huge difference. Posting on Facebook = published. Mailing letters = Did anybody really receive them?
My notes:
- The law of defamation in Florida is poorly understood and an absolute cluster. Arguably the most comprehensive opinion in recent years is Klayman (SDFL 2014 Altonaga). I’ll do an entire post solely on Klayman and the appropriate legal framework. But in Klayman, the Court (essentially) held that defamation per se required allegations of (1) a loathsome disease (2) conduct incompatible with one’s profession (3) a woman being “unchaste” (4) an infamous crime or (5) allegations that subjected one to hatred, distrust, ridicule, etc. In this case, the Court held that the statement was incoherent. I disagree. It’s not the Queen’s English, but the statement’s meaning is clear: Aflalo is abusing a 94 year old. The Court then held – as a matter of law – that the statement definitively could not constitute defamation per se because it was not a statement that subjected the Plaintiff to hatred, disgust or ridicule. In my view, it’s a close enough call that a jury should decide. If somebody accused me of elder abuse, I damn sure would sue them and I would certainly expect to get to a jury trial.
- The Court appears to treat defamation and defamation per se as completely distinct claims (rather than treating defamation per se as a specific type of defamation claim). Some other courts have done this. But I have yet to see a Florida Supreme Court treating defamation and defamation per se as separate claims at the pleading stage. My impression here is that the plaintiff should plead BOTH defamation and defamation per se, then leave it up to the Court to either (A) say they’re one cause of action or (B) analyze them separately. My gut here is that the Plaintiff will just amend and style the claim as defamation, not defamation per se. At that point, the claim should survive a motion to dismiss.
- In my view, I believe the Court was wrong about the publication issue. But publication is the easiest problem to fix in this particular case. In his amended complaint, Plaintiff should identify three of his friends on Facebook to whom the statement was published and indicate that the statement was published to those three individuals at a minimum. That will satisfy the publication requirement.
Florida’s 5th DCA has probably said it best: “Courts and judges frequently disagree with one another as to whether an actionable defamation has been established, as a matter of law.” Scott v. Busch (5th DCA 2005). Ain’t that the truth.
The Facebook case discussed above is Aflalo v. Weiner, 2018 WL 3235529 (SDFL 2018).
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